Animal feed supplement classification turns on use and bulk import, not medicament treatment status.

An imported tylosin phosphate product was found to be an antibiotic preparation with carrier material, imported in bulk and not in measured retail doses, so it did not satisfy the requirements for classification as a medicament under Heading 38.03. The explanatory notes to Heading 23.09 recognise preparations used to supplement animal feed and support animal health, so the product could fall under that heading if its use in animal feed supplement was established. The importer was permitted to produce evidence before the Commissioner on that use, after which appropriate classification orders were to be passed.

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Issues: Whether the imported product, described as an animal feed supplement and consisting essentially of tylosin phosphate, was classifiable as a medicament under Heading 38.03 or as a preparation of a kind used in animal feed under Heading 23.09.

Analysis: The product was found to consist essentially of tylosin, an antibiotic, with carrier material. It was imported in bulk and not in measured doses for retail sale, and therefore did not satisfy the requirements for classification as a medicament. The explanatory notes to the Harmonized System of Nomenclature for Heading 23.09 contemplate preparations used for supplementing animal feed, including feed supplements that help animals make proper use of feed and safeguard health. On that basis, the product could fall under Heading 23.09 if it was shown to be used in making complete animal feed supplement.

Conclusion: The product was not established to be classifiable as a medicament under Heading 38.03. The appeal was accepted in principle, and the importer was permitted to produce evidence before the Commissioner to establish use in animal feed supplement, after which appropriate orders were to be passed.

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